Patna High Court
Shambhu Yadav vs The State Of Bihar on 11 September, 2024
Author: Jitendra Kumar
Bench: Ashutosh Kumar, Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.615 of 2019
Arising Out of PS. Case No.-118 Year-2016 Thana- SATHI District- West Champaran
======================================================
Shambhu Yadav S/O late Chhedi Yadaav R/O Village- Basantpur, P.S.- Sathi,
District- West Champaran
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 591 of 2019
Arising Out of PS. Case No.-118 Year-2016 Thana- SATHI District- West Champaran
======================================================
Banka Yadav, son of late Jagranath Yadav, Resident of village-Basantpur, P.S.-
Sathi, District-West Champaran.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 719 of 2019
Arising Out of PS. Case No.-118 Year-2016 Thana- SATHI District- West Champaran
======================================================
1. Dhruv Yadav @ Dhrup Yadav. son of late Jagdeo Yadav, Resident of village-
Badanpur, P.S.-Sathi, District-West Champaran.
2. Garjan Yadav, son of late Jagdeo Yadav, Resident of village-Badanpur, P.S.-
Sathi, District-West Champaran.
3. Ram Parsan Yadav, son of Dhruv Yadav @ Dhrup Yadav, Resident of
village-Badanpur, P.S.-Sathi, District-West Champaran.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 748 of 2019
Arising Out of PS. Case No.-118 Year-2016 Thana- SATHI District- West Champaran
======================================================
Patna High Court CR. APP (DB) No.615 of 2019 dt.11-09-2024
2/34
Guddu Yadav, son of Garjan Yadav, Resident of village - Basantpur, P.S.-
Sathi, Dist.- West Champaran.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 615 of 2019)
For the Appellant/s : Mr. Bimlesh Kumar Pandey, Advocate.
Mr. Vikash Shukla, Advocate.
Mr. Krishnakant Pandey, Advocate.
Mr. Mithilesh Kumar, Advocate.
Ms. Anjali Kumari, Advocate.
For the State : Mr.Abhimanyu Sharma, APP
(In CRIMINAL APPEAL (DB) No. 591 of 2019)
For the Appellant/s : Mr.Umesh Chandra Verma, Advocate.
Mr. Abhishek Kumar, Advocate.
Ms. Rashmi Jha, Advocate.
Mr. Hemant Ray, Advocate.
For the State : Mr. Abhimanyu Sharma, APP
(In CRIMINAL APPEAL (DB) No. 719 of 2019)
For the Appellant/s : Mr. Uday Pratap Singh, Advocate.
Ms. Bharti Rai, Advocate.
Mr. Rajesh Kumar, Advocate.
For the State : Mr. Abhimanyu Sharma, APP
(In CRIMINAL APPEAL (DB) No. 748 of 2019)
For the Appellant/s : Mr. Bimlesh Kumar Pandey, Advocate.
Mr. Vikash Shukla, Advocate.
Mr. Krishnakant Pandey, Advocate.
Mr. Mithilesh Kumar, Advocate.
Ms. Anjali Kumari, Advocate.
For the State : Mr. Abhimanyu Sharma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE JITENDRA KUMAR
CAV Judgment.
(Per: HONOURABLE MR. JUSTICE JITENDRA KUMAR)
Date : 11-09-2024
All the appeals have been taken up together as they
have been preferred against the same impugned judgment of
conviction and order of sentence dated 22.04.2019 and
26.04.2019
respectively, passed by learned Additional Sessions
Patna High Court CR. APP (DB) No.615 of 2019 dt.11-09-2024
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Judge, FTC-II, West Champaran at Bettiah, in Sessions Trial
No. 418 of 2017 arising out of Sathi P.S. Case No. 118 of 2016,
whereby all six appellants have been found guilty for the
offence punishable under Sections 147 and 302/149 of the
Indian Penal Code. Appellant/Garjan Yadav has been further
found guilty under Section 148 of the Indian Penal Code and
Appellant/Dhruv Yadav has been further found guilty under
Section 27 of the Arms Act. All the appellants have been
sentenced to undergo rigorous imprisonment for one year under
Section 147 of the Indian Penal Code and to undergo life
imprisonment and to pay a fine of Rs.5,000/- each under Section
302 of the Indian Penal Code. Appellant Garjan Yadav has been
further sentenced to rigorous imprisonment for two years under
Section 148 of the Indian Penal Code and appellant Dhruv
Yadav has been further sentenced to undergo rigorous
imprisonment for three years and to pay a fine of Rs.5,000/-
under Section 27 of the Arms Act. In default to pay the fine, the
appellants have been directed to undergo additional rigorous
imprisonment for three months. All the sentences have been
directed to run concurrently.
2. The prosecution case as emerging from the
Fardbeyan of the informant Mannan Yadav recorded by Sub
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Inspector of Sathi Police Station at 23:50 O’clock on
08.09.2016 near the emergency ward of MJK Hospital is that at
5:15 P.M. on 08.09.2016 the informant along with his father
Jhapas Yadav and uncle Jhagru Yadav had just sat at Chhathia
Ghat Chabutra (Platform) after inspecting their agricultural
field. All of a sudden, all the six appellants and co-accused
Ramdat Yadav, Shivparsan Yadav, Jawahar Yadav, Bachu Yadav,
Rajendra Yadav and 4-5 unknown persons came there and
surrounded them. Appellant Dhruv Yadav exhorted the co-
accused to kill them stating that they (victim side) are pursuing
litigation after getting the land registered. They would be
finished today. With such exhortation, Dhruv Yadav fired at his
father with his gun hitting his leg. Seeing the occurrence, he
somehow sneaked away from there and hid himself in nearby
field and kept watching the occurrence. He saw that the
appellant Rajendra Yadav fired at his uncle Jhagru Yadav by his
gun hitting his thigh. In the meantime, Garjan Yadav, Ramdat
Yadav and Shivparsan Yadav having farsa in their hands and
Ramparsan Yadav, Guddu Yadav, Jawahar Yadav, Bachu Yadav
and Shambhu Yadav along with others having lathi and spear in
their hands, were assaulting his father and uncle
indiscriminately, whereas Dhruv Yadav and Rajendra Yadav
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started doing indiscriminate firing hitting his father and uncle on
different parts of their body. His father and uncle received injury
caused by Lathi, Bhala and Farsa also on their heads and other
parts of their bodies, resulting into fracture in their hands and
legs on different places. Having seen the occurrence, he rushed
to the village crying. When the villagers came there on his hulla,
the accused persons fled away, leaving his father and uncle in
injured condition. Both the injured persons were taken to
Chanpatia Hospital by him with the help of co-villagers,
wherefrom seeing the very serious condition of his father, he
sent his father directly to Bettiah by vehicle but he died on way
to Bettiah. His uncle Jhagru Yadav was sent to Bettiah MJK
Hospital, wherefrom the doctor referred him to Patna. But he
died when he was being lifted in the ambulance for taking him
to Patna. The reason of the occurrence is stated to be land
dispute between the accused and informant sides. The grand-
father of the informant had got some land registered from
Mishraji and Koina Ji, in regard to which, the accused persons
always used to quarrel with them. Even Panchayti was held
between them. They were always extending threat to them. The
informant has also claimed that the accused persons have killed
both the deceased.
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3. On the basis of the Fardbeyan of the informant,
Sathi P.S. Case No. 118 of 2016 was registered on 09.09.2016
against 11 named accused persons including the appellants
herein and 4-5 unknown persons for the offence punishable
under Sections 147, 148, 149, 341, 323, 324, 302 and 504 of
Indian Penal Code and Section 27 of the Arms Act.
4. After investigation, charge-sheet was submitted
against all six appellants keeping the investigation pending
against rest co-accused persons. After cognizance, the case was
committed to the Court of Sessions by learned Magistrate.
Hence, Charge was framed against them under Sections 147,
148, 341/149 and 302/149 of the Indian Penal Code and Section
27 (3) of the Arms Act, 1959. The appellants, however, pleaded
not guilty and claimed to be tried.
5. During the trial, the prosecution examined the
following nine witnesses:-
(i) P.W.-1 – Tara Devi (aunt of the informant)
(ii) P.W.-2 – Rajdeo Pandit
(iii) P.W.-3 – Megha Yadav (cousin of deceased
Jhapas)
(iv) P.W.-4 – Binod Yadav
(v) P.W.-5 – Dina Nath Rai
(vi) P.W.-6 – Mannan Yadav (Informant)
(vii) P.W.-7 – Dr. Sanjay Kumar Gupta, Medical
Officer.
(viii) P.W.-8 – Dr. Vijay Kumar, Medical Officer.
(ix) P.W.-9 – Manjar Alam, Investigating Officer.
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6. The prosecution also brought on record the
following documentary evidence:
(i) Ext.-1 – Signature of Binod Yadav on the seizure
list.
(ii) Ext.-1/1- Signature of Dadan Yadav on the sizure
list.
(iii) Ext.-2 – Postmortem report of Jhapas Yadav.
(iv) Ext.-2/1- Postmortem report of Jhagaru Yadav
(v) Ext.-2/2 – Signature of observer on Postmortem of
Jhapas Yadav.
(vi) Ext.-2/3- Signature of observer on Postmortem
report of Jhagaru Yadav.
(vii) Ext.-3 – Endorsement of registration of F.I.R. on
Fardbeyan
(viii) Ext.-4 – Fardbeyan with signature of PW-6
(informant)
7. After closure of the prosecution evidence, accused
persons were examined under Section 313 Cr.PC confronting
them with incriminating circumstances which came in the
prosecution evidence, so as to afford them opportunity to
explain those circumstances. During this examination, they
admitted that they had heard the evidence of prosecution
witnesses against them. But they did not explain any
circumstance, though they claimed that the prosecution evidence
is false and they are innocent.
8. The defence has also examined the following five
witnesses in their defence:
(i) D.W.1- Jainuddin Gaddi
(ii) D.W.2- Yogendra Yadav
(iii) D.W. 3- Banka Yadav (accused himself)
Patna High Court CR. APP (DB) No.615 of 2019 dt.11-09-2024
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(iv) D.W. 4- Laxman Yadav
(v) D.W.5 – Sabhapati Yadav @ Pashupati Yadav
9. The accused/appellants have also brought on
record the following documents in their defence:-
(i) Ext.-A- The certified copy of the order dated
17.7.2018 in Sathi P.S. Case No. 115/11.
(ii) Ext.-B- The C.C. of F.I.R. of Sathi P.S. Case No. 115 /
11.
(iii) Ext.-C/1- The C.C. of F.I.R. of Sathi P.S. Case No.
231/15.
(iv) Ext.-B/2- The C.C. of F.I.R. of Sathi P.S. Case No.
82/2001.
(v) Ext.-B/3- The C.C. of F.I.R. of Sathi P.S. Case No.
13/2000
(vi) Ext. B/4- The C.C. of F.I.R. of Sathi P.S. Case
No.22/2000.
(vii) X – for identification of Photocopy of F.I.R. of Sathi
P.S. Case No. 38/2000.
(viii) X/1 – for identification of Photocopy of C.S. of Sathi
P.S. Case No. 38/2000.
(ix) X/2 – for identification of Photocopy of F.I.R. of Sathi
P.S. Case No. 97/1999.
(x) Ext. C- The C.C. of the order dated 9.7.2015 to
14.7.2016 in Sathi P.S. Case No. 77/14.
(xi) Ext. C/1- The C.C. of the order sheet dated 17.10.16
and 20.09.2016 of Trial No. 3773 of 2016.
(xii) Ext. D- The C.C. of F.I.R. of Sathi P.S. Case No.
77/14.
(xiii) Ext. E- The C.C. of Chargesheet of Sathi P.S. Case
No. 77/14.
(xiv) Ext. F- The C.C. of attendance sheet in Trial No.
3773/16 dated 23.12.2016
(xv) Ext. F/1- The C.C. of pairvi of dated 20.9.2016.
(xvi) Ext. F/2- The C.C. of pairvi of dated 08.09.2016.
(xvii) Ext. F/3- The C.C. of pairvi of dated 17.10.2016.
10. Learned Trial Court after appreciating the
evidence on record and considering the submissions of the
parties, passed the impugned judgment of conviction and order
Patna High Court CR. APP (DB) No.615 of 2019 dt.11-09-2024
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of sentence whereby all the appellants have been found guilty
and sentenced accordingly.
11. We have heard learned counsel for the appellants
and learned APP for the State.
12. Learned counsel for the appellants submit that the
learned Trial Court has not properly appreciated the evidence on
record and erroneously passed the impugned judgment and
order. They have further submitted that none of the non-official
witnesses have seen the occurrence but they- P.W.-1, P.W.-2,
P.W.-3, P.W.-4, P.W.-5 and P.W.-6 have falsely projected
themselves to be the eye-witnesses. Moreover, five of them i.e.,
P.W.-1 to P.W.-5 are chance witnesses and their presence at the
place of occurrence is not established. Hence, their evidence
cannot be relied upon.
13. They have also submitted that P.W.-1, Tara Devi,
P.W.-3, Megha Yadav and P.W.-6, the informant, are relatives of
the deceased and hence, their evidence is not reliable. They have
further submitted that prosecution witnesses have developed
their statements during trial regarding the occurrence and there
are material contradictions in their statements. They have also
submitted that as per the evidence adduced by the appellants in
their defence, they were not on the place of occurrence. They
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have been falsely implicated on account of previous enmity.
14. They have further submitted that inquest report
was prepared prior to institution of the F.I.R. and the
prosecution has not brought on record the first version of the
prosecution case withholding the information which was given
by the informant to the police telephonically with regard to the
incident.
15. However, learned APP for the State has defended
the impugned judgment and order submitting that there is no
illegality or impropriety in the impugned judgment. The
prosecution has proved its case beyond all reasonable doubts
and the appellants have been appropriately sentenced.
16. We have thoroughly perused the material on
record including the evidence and given thoughtful
consideration to the submissions advanced by both the parties.
17. In view of the submissions of learned counsel for
the appellants, it would be imperative to refer to some principles
of appreciation of evidence before we proceed to discuss the
evidence on record.
18. In regard to a chance witness, it is well settled
principle of law that his evidence cannot be brushed aside or
viewed with suspicion merely on the ground that he was a
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chance witness. However, his evidence requires a very cautious
and close scrutiny and his presence at the place of occurrence
should be adequately explained so as to make his testimony
reliable. In this regard, one may refer to the following judicial
precedents:
(i) Ravi Mandal Vs. State of Uttrakhand,
AIR 2023 SC 2554
(ii) Baby @ Sebastian & Anr. Vs. Circle Inspector of
Police, Adimaly, (2016) 13 SCC 333
(iii) Jarnail Singh Vs. State of Punjab, (2009) 9 SCC 719
(iv) Sarvesh Narain Shukla Vs. Daroga Singh,
(2007) 13 SCC 360
(v) Acharaparambath Pradeepan Vs. State of Kerala,
(2006) 13 SCC 643
(vi) Sachchey Lal Tiwari Vs. State of U.P.,
(2004) 11 SCC 410
(vii) Harjinder Singh Vs. State of Punjab,
(2004) 11 SCC 253
(viii) State of A.P. Vs. K. Srinivasulu Reddy,
(2003) 12 SCC 660
(ix) Shankarlal Vs. State of Rajasthan,
(2004) 10 SCC 632
(x) Satbir Vs. Surat Singh, (1997) 4 SCC 192
19. It is also settled principle of law that the evidence
of any relative or family members cannot be discarded only on
account of his or her relationship with the deceased. The
evidence of such evidence has to be weighed on the touchstone
of truth and at most a court is required to take care and caution
Patna High Court CR. APP (DB) No.615 of 2019 dt.11-09-2024
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while appreciating their evidence. In this regard, one may refer
to the following judicial precedents:
(i) Abhishek Sharma Vs. State (NCT of Delhi),
2023 SCC OnLine SC 1358;
(ii) Yogesh Singh Vs Mahabeer Singh & Ors;
(2017) 11 SCC 195;
(iii) Mano Dutt and another Vs. State of Uttar Pradesh;
(2012) 4 SCC 79;
(iv) Daulatram Vs. State of Chhattisgarh,
2009 (1) JIJ 1;
(v) State Vs. Saravanan, (AIR 2009 SC 152);
(vi) State of U.P. v. Kishanpal, (2008) 16 SCC 73;
(vii) Namdeo Vs. State of Maharashtra,
(2007) 14 SCC 150;
(viii) State of A.P. Vs. S. Rayappa, (2006) 4 SCC 512;
(ix) Pulicherla Nagaraju Vs. State of A.P.,
(2006) 11 SCC 444;
(x) Harbans Kaur Vs. State of Haryana;
(2005) 9 SCC 195;
(xi) Hari Obula Reddy and Ors. Vs. The State of
Andhra Pradesh, (1981) 3 SCC 675
(xii) Piara Singh and Ors. Vs. State of Punjab,
(1977) 4 SCC 452
20. In regard to contradictions and discrepancies in
the evidence of the prosecution witnesses, it is again settled
principle of law that minor discrepancies on trivial matters, not
touching the core of the case; hyper-technical approach by
taking sentences taken out of context here or there from the
evidence; attaching importance to some technical error
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committed by the investigating officer not going to the root of
the matter, would not ordinarily permit rejection of the evidence
as a whole. In the deposition of witnesses, there are always
normal discrepancies, howsoever, honest and truthful they may
be. These discrepancies are due to normal errors of
observations, normal errors of memory due to lapse of time,
mental disposition, shock and horror at the time of occurrence
and threat to the life. Therefore, it is the duty of the court not to
attach undue importance to minor discrepancies unless they go
to the heart of the matter and shake the basic version of the
prosecution witnesses as the mental ability of a human being
cannot be expected to be attuned to absorb all the details of the
incident. Minor discrepancies are bound to occur in statements
of witnesses. In fact minor discrepancies in deposition are
indication that the witnesses are not tutored and they are
truthful. In case of rustic witnesses coming from villages, court
should not be oblivious of the fact that their behaviour pattern
and perceptive habits are not attuned to sophisticated
approaches familiar in Courts. In this regard, one may refer to
the following judicial precedents:
(i) C. Muniappan & others Vs. State of T.N.,
(2010) 9 SCC 567;
(ii) State of U.P. Vs. Krishan Master,
Patna High Court CR. APP (DB) No.615 of 2019 dt.11-09-2024
14/34(AIR 2010 SC 3071);
(iii) Appabhai & Anr. Vs. State of Gujrat,
AIR 1988 SC 696;
(iv) Shivaji Sahebrao Bobade & Anr Vs. State Of
Maharashtra, (1973 AIR 2622);
(v) Sanjay Kumar Vs. State of Bihar,
2019 SCC OnLine Pat 1077;
(vi) State of Madhya Pradesh Vs. Dal Singh,
(2013) 14 SCC 159;
(vii) Smt. Shamim Vs. State (GNCT of Delhi),
2018 (4) PLJR 160;
(viii) S. Govidaarju Vs. State of Karnataka,
2013 (10) SCALE 454
(ix) Narotam Singh vs. State Of Punjab And Anr.
(AIR 1978 SC 1542)
(x) Leela Ram Vs. State of Haryana, (1999) 9 SCC 525;
(xi) Subal Ghorai and Ors. Vs. State of West Bengal,
(2013) 4 SCC 607;
(xii) Yogesh Singh Vs. Mahabeer Singh & Ors.,
(2017) 11 SCC 195.
21. It is also settled principle of law that the defect in
the Investigation by itself cannot be a ground for acquittal
unless the said defect causes prejudicce against the accused.
The conclusion of a trial in a case cannot be allowed to be
dependent solely on provity of investigation. If primacy is
given to such designed or negligent investigation or to the
omissions or lapses by perfunctory investigation, the faith and
confidence of the people in the criminal justice administration
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would get eroaded. Hence, criminal trials could not be made
casualities for any lapses committed by the Investigating
Officer. As such, in Criminal trials, even if the investgation is
defective, the rest of the evidence must be scrutnized
independetly of the impact of the defects in the investigation,
other wise the criminal trial will plummet to the level of the
investigation. In this regard, one may refer to the following
judicial precedents:
(i) Ranjeet Kumar Ram @ Ranjeet Kumar Das Vs. The
State of Bihar [2015 (2) PCCR 416]
(ii) C. Muniappan & others Vs. State of T.N.
(2010) 9 SCC 567
(iii) Sukhdeo Yadav & Ors. Vs. State of Bihar,
(2001) 8 SCC 86.
22. In regard to alibi, Hon’ble Supreme Court in
Binay Kumar Singh Vs. State of Bihar, (1997) 1 SCC 283
has held that the Latin word alibi means “elsewhere” and that
word is used for convenience when an accused takes recourse
to a defence line that when the occurrence took place he was so
far away from the place of occurrence that it is extremely
improbable that he would have participated in the crime.
23. In Kamal Prasad Vs. State of Chhattisgarh,
(2023) 10 SCC 172, Hon’ble Supreme Court after referring to
various judicial precedents has summarized the principles
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regarding the plea of alibi as follows:-
“24.1. It is not part of the General Exceptions under IPC
and is instead a rule of evidence under Section 11 of the
Evidence Act, 1872.
24.2. This plea being taken does not lessen the burden of
the prosecution to prove that the accused was present at
the scene of the crime and had participated therein.
24.3. Such plea is only to be considered subsequent to the
prosecution having discharged, satisfactorily, its burden.
24.4. The burden to establish the plea is on the person
taking such a plea. The same must be achieved by leading
cogent and satisfactory evidence.
24.5. It is required to be proved with certainty so as to
completely exclude the possibility of the presence of the
accused at the spot of the crime. In other words, a standard
of “strict scrutiny” is required when such a plea is taken.”
24. It is also relevant to point out that it is settled
position of law that the proof beyond reasonable doubts is not
necessarily a perfect proof to mathematical precision. All that it
requires is the establishment of such a degree of probability that
a prudent man may on, its basis, believe in the existence of the
facts in issue. The accused are entitled to get benefit not of all
doubts, but only of reasonable doubts. Every hesitancy, hunch
or doubt are not reasonable doubts. The following Authorities
may be referred to in this regard:
(i) Collector of Customs Vs. D. Bhoormal, (1972) 2 SCC 544
(ii) Kali Ram Vs State of HP; (1973) 2 SCC 808
(iii) Dharm Das Wadhwani Vs. State of U.P.
(1974) 4 SCC 267
(iv) Shivaji Sahabrao Bobade Vs. State of Maharashtra,
(1973) 2 SCC 793
(v) Dilavar Hussain Vs. State of Gujarat, (1991) 1 SCC 253
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(vi) Narender Kumar Vs. State (NCT of Delhi),
(2012) 7 SCC 171
25. Now coming to the evidence of the prosecution,
we find that the informant Mannan Yadav has been examined
as P.W.-6. In his examination-in-chief, he has deposed in
consonance with his fardbeyan. In his cross-examination, he
could not say how many times garansa, lathi and bhala were
used. His father had not suffered assault of garasa on his chest,
shoulder, back and stomach and even on forehead. He received
injury of farsa after gunshot. When he along with deceased was
sitting at the Chabutra, he had seen Binod Yadav grazing his
buffaloes at the distance of 2-3 laggis. After sitting for 10-12
minutes at Chabutra, the occurrence had taken place. The
gunshot was fired from North direction. The occurrence had
taken place for 10 minutes. Nobody had come to rescue them.
When gunshot started, he walked away from the place of
occurrence. The gunshot had hit left leg of his father and the
pellet came out from his body. Both gunshots were made within
a minute. He has denied the suggestion that Jhagru has not
received gunshot injury in his thigh. However, he could not say
whether the pellet had come out from his thigh or not. Jhagru
had not received farsa injury on his arms and legs. The only one
of his legs had received injury of bhala. He has denied the
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suggestion that he was not present at the place of occurrence.
When the appellants came to the place of their sitting, they did
not flee away. He also did not raise any hulla. But when he was
fleeing away, he had raised hulla. However, the appellants did
not assault him. Appellant Rajendra had fired at Jhagru hitting
his right thigh. When he fled away from the place of occurrence,
he came back after half an hour at the place of occurrence and
found that his father was dead and his uncle was unconscious.
By that time, the police had also come. Whether any written
work was done by the police at the place of occurrence, he
could not say. His fardbeyan was recorded at Bettiah hospital.
He could not say for how long there was enmity with the
accused/appellants. But there always used to be quarrel
between two sides and in Sathi P.S. Case No. 32 of 2001 his
father and uncle had gone to jail also for murder. He could not
say whether his father and uncle were accused in Sathi P.S. Case
No. 38 of 2000 lodged by Dhruv Yadav. He also knows nothing
about Sathi P.S. Case No. 97 of 1999, Sathi P.S. Case No. 231 of
2015, Sathi P.S. Case No. 13 of 2000, Sathi P.S. Case No. 82 of
2001, Sathi P.S. Case No. 115 of 2011 and Miscellaneous Case
No. 04 of 2008. He could not say whether the police had seized
the blood soaked clothes of the deceased. He has denied the
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suggestion that his father and uncle were criminal and they have
been killed on account of partition dispute amongst the family
members. Rajendra Yadav and Jhagru Yadav have contested the
Mukhiya election. Tara Devi is his aunt. The place of occurrence
is situated at 1 ¼ kilometer away from the village. Tara Devi
was also cutting grass there. He has not seen whether the grass
was seized by the police or not. At the time of firing, he was at
the place of occurrence and only after 10-12 minutes, he fled
away from there. He has denied the suggestion that he has
named Shambhu Yadav on account of enmity.
26. P.W.-1 Tara Devi is a grass cutter illiterate lady.
At the time of occurrence, she was cutting grass near the place
of occurrence. She has supported the prosecution case deposing
in her examination-in-chief in consonance with the fardebayan
of the informant. She also identified the accused standing in the
dock. In her cross-examination, she has deposed that after the
occurrence, she is living at Sirasia village. At the time of
occurrence, she was standing to lift the cut grass. To the north of
the place where she was standing, is sugarcane field of Dhruv
Yadav and to the west of the place, is her own land and to the
east, there is land of Dhruv Yadav. She was standing facing east
direction and the accused came from north-east side from the
Patna High Court CR. APP (DB) No.615 of 2019 dt.11-09-2024
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sugarcane field. They were carrying gadasa, bhala and gun.
They were cutting the victims like a butcher by farsa and
gadasa. She did not go to the injured, instead she went to the
village raising halla. She has denied the suggestion that the
accused persons have lodged several criminal cases against her
and that is why she has deposed falsely. She has no idea about
the murder of Chandrika and Rameshwar. She is not aware
whether the police had seen her grass. When she was watching
the occurrence, the accused persons threatened her and that is
why she fled away. Jhapas Yadav was wearing baniyan and
lungi. Jhagru Yadav and Jhapas Yadav were sitting facing the
south direction. She has denied the suggestion that she was not
present at the place of occurrence.
27. P.W.-2 is Raj Deo Pandit. In his examination-in-
chief, he has deposed that the occurrence had taken place about
one year and nine months back. He had given his land on batai
to Binod Rai and he had gone to see that land. That land is
situated at Chhathia Ghat. He saw that Dhruv Yadav was
carrying gun, Bacchu Yadav was carrying bhala and Rajendra
Yadav was carrying gadasa etc. However, he could not
remember the names of the other accused. Dhruv Yadav had
given order to kill Jhapas and Jhagru because they did not allow
Patna High Court CR. APP (DB) No.615 of 2019 dt.11-09-2024
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them to plough the land and he fired. Consequently, Jhapas
received gunshot in his leg and fell down and rest people were
wielding lathi and bhala. Then he fled away. Thereafter, he
heard that Jhapas and Jhagru had died. He identified Shiv
Prasan Yadav, Ram Prasan Yadav, Garjan Yadav, Banka Yadav,
Shambhu Yadav and Dhruv Yadav but he could not identify the
rest accused. In his cross-examination, he has deposed that
after firing, he did not flee away immediately. He saw the
occurrence for a while. However, he did not go the place of
occurrence. He could not see who were carrying what arms. He
was at the distance of ten deg from the place of occurrence. The
accused persons had surrounded Jhagru Yadav and Jhapas Yadav
who were sitting on Chabutra. He heard three gunshots. Dy. S.P
had visited the place of occurrence. His village is at the distance
of half kilometer from the place of occurrence.
28. P.W.-3 is Megha Yadav, who is an illiterate
villager has deposed in his examination-in-chief in consonance
with the fardbeyan of the informant. He is cousin of the
deceased Jhapas Yadav and Jhagru Yadav. He is a cultivator and
works at Chanpatiya Chura Mill of Rajiv Singh and Santosh
Prasad. He works in night and stays at home during day. At the
time of occurrence, he had gone towards his fields. Total 18
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persons were at the place of occurrence. 11 persons were
accused who had surrounded the victims and the rest persons
were passers-by and grass cutters. The firing was done from the
distance of 5-10 deg. The Chhathia Ghat Chabutra is at the
distance of half kilometer from the village Basantpur. Dhruv
Yadav and Rajendra Yadav were carrying gun in their hands.
They had fired from their guns. The pellets had passed through
the thigh of Jhagru Yadav. The firing was done from 10-15 deg.
Jhagru Yadav received this gunshot from the front. Mannan
Yadav was standing at the place of occurrence during firing.
Ram Prasan Yadav was assaulting Jhagru Yadav by farsa. 4-5
persons were wielding lathi. Jhapas has also got his hand and
legs broken. He had received several lathi assaults. He had
found even gunshot injury in his body. However, there was no
injury caused by Bhala. But he had received farsa injury. He
was at the distance of 10-15 degs at the time of assault but he
was not assaulted by the accused persons. His father, Rajdeo
Pandit, Jhapas, Jhagru and Lal Bahadur were accused in Sathi
P.S. Case No. 82 of 2001 lodged by Dhruv Yadav. Sathi P.S.
Case No. 231 of 2015 was also lodged by Dhruv Yadav in which
both the deceased were accused. He has denied the suggestion
that the deceased were killed by their own persons. When he
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was at the place of occurrence, police had also come and
inquired from him about all the occurrence. Police had seized
some cartridges and clothes. The dead body was carried by the
police. The statement was recorded by the police. He denied the
suggestion that he was not present at the place of occurrence.
29. P.W.-4 is Binod Yadav who was grazing his
buffalo at the time of occurrence. In his examination-in-chief,
he has deposed in consonance with the fardbeyan. Police has
also reached the place of occurrence and seizure list was
prepared in his presence on which he had put his signature.
Dadan Yadav had also put his signature on the seizure list.
Seizure lists have been marked as Ext.-1 and 1/1. His statement
was also recorded by the police. He had identified all the
accused standing in the dock. He had taken his buffalo for
grazing at 2:00 pm. When the accused persons started
assaulting, there was hulla. Then he saw the occurrence. At the
time of firing, the accused was not surrounded from all sides. It
was Dhruv Yadav who had fired first. In Sathi P.S. Case No. 82
of 2001 he was an accused and Dhruv Yadav was a witness. He
also saw Megha Yadav, Tara Devi, Mannan Yadav, Dinanath
Rai, Rajdeo Pandit and others fleeing away from Chabutra. Tara
Devi was to the South of the Chabutra, Megha was to the West,
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Mannan was to the South. But nobody who were present at the
place of occurrence tried for stopping the occurrence. The
occurrence took place in five minutes. Mannan Yadav fled away
just after start of the occurrence. However, the accused persons
did not follow him. After ten minutes of the occurrence, he fled
away to the village leaving behind the buffalo. Mannan Yadav
was hiding himself in bush of Munj. Rajendra Yadav and Dhruv
Yadav had done 5-7 firing. Jhagru had received gunshot injury
in thigh. Writing work had been done by the police on the place
of occurrence. It was not late night at that time. Police had taken
away the injured persons along with their clothes. He went back
to his village and raised hulla. He has no litigation with the
accused persons. In his statement to the police, he has stated that
Shambhu Yadav was present at the place of occurrence.
30. P.W.-5 is Dinanath Roy. He has also supported
the prosecution case. In his examination-in-chief, he has
deposed that on the date of occurrence, he had gone to the
house of Binod Yadav to purchase his buffalo. But his father
told him that the buffalo is grazing at Chhathia Ghat. Hence, he
went there and met Binod and saw his buffalo. When he started
returning after seeing the buffaloes, and moved 7-8 laggis, he
saw Dhruv Yadav, Garjan Yadav, Ramdat Yadav, Guddu Yadav,
Patna High Court CR. APP (DB) No.615 of 2019 dt.11-09-2024
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Ramparsan Yadav, Shiv Parasan Yadav and other accused
coming out from the sugarcane field. Dhruv Yadav was carrying
gun in his hand. Another man was also carrying gun whom he
did not know. Jhagru, Jhapas and Mannan Yadav were sitting at
Chabutra of Chhathia Ghat. Dhruv Yadav exhorted his men and
fired hitting the leg of Jhapas who fell down. Other persons
started assaulting by Lathi, Garansa and Bhala. He identified
Dhruv, Garjan, Guddu and Ramparasan Yadav standing in the
dock. He could not identify the rest two. The names of persons
who could not be identified are Shambhu and Banka Yadav. In
his cross-examination, he has deposed that he is resident of
Chhardewaji Dowa and not Basantpur. The buffalo was grazing
to the South of Chabutra where he met Binod and who took him
to the buffalo. He also saw Binod, Jhagru, Jhapas, Bhabhu of
Binod and Jhagru, Mannan, Megha, Rajdeo Pandit, Jhagru,
Jhapas and Mannan were sitting at the Chabutra and others
were at some distance from Chabutra to the South East. He also
saw the accused persons surrounding Jhagru and Jhapas from
three sides. It was also vacant to the West of Chabutra. Before
surrounding the deceased, the firing was done. The gun was
fired from the distance of 4-5 laggis. The sugarcane field of
Dhruv Yadav is just 50-60 Gaz away from the Chabutra. The
Patna High Court CR. APP (DB) No.615 of 2019 dt.11-09-2024
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firing was not done from the sugarcane field. He has denied the
suggestion that he was not present at the place of occurrence.
31. P.W.-7 is Dr. Sanjay Gupta who had conducted the
postmortem examination on the dead body of the deceased
Jhapas Yadav and Jhagru Yadav. In the postmortem
examination of Jhapas Yadav, he had found as follows:-
“(i) Skull lacerated wound 2″ x 1/2” left side-
parietal region-skin deep 1/2″ x 1/4″ skin deep
lacerated wound perito-occipital region.
(ii) Right arm incised wound 2″ x 1″ muscle deep
longitudnally outer side of arm above elbow. Multiple
abrasion with bruise 5″ x 2″, 1″x 1″ on outer side of
the arm with deformity of forearm. On dissection
fracture of soft of radius and ultra bone.
(iii) Left arm incised wound 1″x 1/2″ x 1/2″ at
elbow outer side. Multiple bruise 4″ x 1″ 1″x1″ on
outer side with deformity of left fore-arm. On
dissection fracture of radius and ulna soft.
(iv) Lt. leg one punctured lacerated wound with
inverted irregular margin 1″ in diameter (wound of
entry) presented on medial side above emple, this
wound was communicating with one another wound
on lateral side above ankle i.e. lacerated inverted
irregular margin 1 1/2″ in diameter fracture of tibia
fibula lower third on dissection.
No foreign body present. The above noted
injuries are ante mortem in nature.
Injury No. I, II, III caused by Hard Blunt
substance and IV and V caused by fire-am and Injury
No. II, III also caused by sharp object. Death was
caused due to hemorrhage and shock and time since
death 12 to 24 hours.”
32. On the same day at 11.30 A.M. he also conducted
post-mortem examination on the dead body of Jhagaru
Yadav and found as follows:-
Patna High Court CR. APP (DB) No.615 of 2019 dt.11-09-2024
27/34“(i) Rt. arm abrasion anteriorly 1/2″ x 1/2” with
deformity of arm on dissection, fracture of soft of
humerous.
(ii) Rt. scapulla multiple abrasion with
measuring 2 x 1″, 2″ x 2″.
(iii) Rt. thigh, punctured lacerated wound 1/4″ x
1/4″.
(iv) Rt.leg lacerated wound 1 1/2″ skin deep up
to bone above ankle on medial side on dissection
fracture of tibia lower third.
(v) Lt.leg incised wound 1 1/2″ skin deep medial
side of leg above ankle with another 1/2″ x 1 1/4″
punctured lacerated wound just above previous
wound.
These injuries have been caused by hard blunt
and sharp object time since death 12 to 24 hours. This
P.M. is also in his pen and signature under the
observation of Dr. S. K. Dubey, Dr. Vijai Kumar who
also put their signatures.”
33. In cross-examination, P.W.-7 has deposed as
follows:-
“I did not mention about blood stained clothes.
Incised wound may be caused by sharp cut weapon. It
may be caused by sword also. I can not say as to the
difference between injury caused by sword and
garasa. Bhala causes punctured wound & Farsa
causes incised wound with clean margin. Laceration
may be caused by fall on hard object. In case of
Jhapas Yadav as to injury No. 1, Skin deep near 5.6”
in deep. It is not fatal Injury. Injury No. II not on the
vital parts of the body. Injury No. IV may be caused
by Sharp weapon or rod. Injury No. V may be caused
by rod & Sharp weapon. It is not a fact that, I am not
confirmed about II and IV. Abrasion may be caused
by fall on hard surface. In case of Jhapas, I did not
find injury in internal part of the body i.e. stomach,
chest, belly etc. Hence I did not mention about
viscera. I did not mention hemorrhage specifically. I
am not expert of postmortem examination because it
is mainly concerned with forensic department. It is
based on basic principles of medical jurisprudence. I
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have not found any pellet in the body of Jhapas”.
34. P.W.-8 is Dr. Vijay Kumar. Under him, the
postmortem was conducted by Dr. S.K. Gupta (P.W.-7) and Dr.
Srikant Dubey. He has proved the signature of himself as well
as Dr. S.K. Dubey in the postmortem report. In his cross-
examination, he has deposed that there is no indication of
persistent oozing of blood and he could not say the distance of
gunshot.
35. P.W.-9 is Manjar Alam. He is Investigating
Officer of the case. After taking over charge of investigation, he
visited the place of occurrence situated at Basantpur village
under Sathi Police Station. The occurrence was said to have
taken place at Chabutra under Pipal tree at Chhathia Ghat near
Sikrahana river. The place of occurrence was surrounded by
land of Dhruv Yadav to the North, Sugarcane field of deceased
Jhapas Yadav to the South, Sikrahana river to the East and land
of Bhola Yadav to the West. He inspected the place of
occurrence and found blood fallen on the ground. He also found
four live cartridges which he seized. He prepared the seizure list
in his own handwriting in the presence of Binod Yadav and
Dadan Yadav as witnesses and the same have been exhibited as
Ext. 1 and 1/1. He also recorded the statement of Binod Yadav,
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Tara Devi, Megha Yadav, Rajdeo Pandit, Dinanath Rai and
others on the place of occurrence itself who supported the
alleged occurrence. Awadhesh Jha had prepared the inquest
report. He had not recorded the re-statement of the informant
prior to coming to the place of occurrence. The informant has
not clearly stated that in whose hand what types of arms were
there. He had stated about their sudden surrounding by the
accused persons. He had also stated that Dhruv Yadav and
Rajendra Yadav were doing indiscriminate firing and he had
hidden himself in the field. He had also stated to him that
Ramrut Yadav, Garjan Yadav and Ramprasan were carrying
farsa in their hand. Ramprasan Yadav and Guddu Yadav were
also carrying lathi. Rajendra Yadav and Dhruv Yadav were
stated to have done indiscriminate firing. Binod Yadav had
stated to him that he was grazing buffalo. Witness Tara Devi is
resident of Basantpur and not Sirsiya. Rajdeo Pandit is also
resident of Basantpur.
36. Jainuddin Gaddi has been examined as D.W.-1.
In his examination-in-chief, he has deposed that on the date of
occurrence appellants/ Shambhu Yadav and Bachhu Yadav were
not at the place of occurrence. On that day Shambhu Yadav had
gone to Kachahari from his sasural. In his cross-examination,
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he has deposed that he had come to court to depose in the case
at the instance of appellant/Shambhu Yadav, who is also
present. He has also deposed that he along with Shambhu
Yadav does the business of Milk. He has denied the suggestion
that he has deposed falsely to protect his friend.
37. Yogendra Yadav has been examination as D.W.-2.
In his examination-in-chief, he has deposed that he knows
appellant/Banka Yadav. He is his neighbour. He further deposed
that he and Banka Yadav work at Saidpur since prior to date of
occurrence and lived there. In his cross-examination, he has
deposed that he and Banka worked with a mason. But they are
not working under any company. They were working there on
the call of a house owner. But he does not remember the name
of the house owner. He could not tell even the first day when he
had started his work, nor could he tell last date of work with the
mason. He could not tell even how long he had worked with
mason. He used to get wage of Rs. 300/- per day. Besides him
and Banka, other labourers were also working with the mason.
He could not tell even how much wage he got. He has denied
the suggestion that he has deposed falsely.
38. Banka Yadav, who is a appellant himself, has
been examined as D.W.-3. In his examination-in-chief, he has
Patna High Court CR. APP (DB) No.615 of 2019 dt.11-09-2024
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deposed that on the date of occurrence, he was not at home. He
along with Dhruv Yadav, Garjan Yadav and Ram Prasan Yadav
had gone to his relative. They had gone to the house of
Pasupati. When he came back to his village, he came to know
about the occurrence. In his cross-examination, he has deposed
that he has come to depose not on summons but at the instance
of Dhruv Yadav. He had gone to the house of Pasupati in regard
to the marriage. But he could not tell how many people were
there along with him at the house of Pasupati. He could not
remember any person who were present along with him at the
house of Pasupati.
39. Lakshman Yadav has been examined as D.W.-4.
In his examination-in-chief, he has deposed that he sells milk
in Court. On the date of occurrence, Shambhu Yadav, Bachhu
Yadav and Jaitun Ansari had gone to Court along with him and
from the Court, Shambhu Yadav went to Dumra and Bachu
Yadav went to his sasural at Nokia Toka. In his cross-
examination, he has deposed that he is not literate. He has been
doing business of milk for 10 years. He sells 20 kg. milk every
day. He has come to depose at the instance of
appellant/Shambhu Yadav.
40. Sabhapati @ Pasupati Yadav has been examined
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as D.W.-5. In his examination-in-chief, he has deposed that on
the date of occurrence, Ramdat Yadav, Dhruv Yadav, Garjan
Yadav, Ram Prasan Yadav and Shiv Prasan Yadav had come to
his house to see his daughter for marriage and whole day they
stayed at his house and returned to their home next day. In his
cross-examination, he has deposed that he had come to depose
not on summons of the Court. Dhruv Yadav is father-in-law of
his daughter. He has denied the suggestion that he has deposed
falsely.
41. From the aforesaid evidence, we clearly find that
all six non-official witnesses have seen the occurrence. Their
presence on the place of occurrence is well established. They
are also consistent and trustworthy. They inspire confidence of
the Court. There are no material contradictions in their
statements. Minor discrepancies are found to occur, more so,
when the witnesses are villagers and illiterate. Moreover, the
ocular evidence is corroborated by the medical evidence which
clearly shows that the deceased had received gunshot injuries
besides injury caused by sharp edged weapons like spear, farsa
and hard and blunt substance like lathi/danda. We also find no
major defects in the investigation nor is any unnecessary delay
in lodging FIR or in transmission of the FIR to the jurisdictional
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Magistrate. Nor is any delay in preparation of the inquest
reports. The inquest reports of both the deceased were prepared
immediately at the hospital after their death. The FIR was
lodged after the death of the second deceased. We don’t find
any evidence of false implication or embellishment in the FIR.
Nor is any such cross-examination or suggestion of the
appellants during trial. There is also strong motive of the
appellants to eliminate the deceased due to enmity on account
of land disputes and consequent litigations between the two
sides. There is also no substance in the plea of alibi taken by the
appellants. The Defence Witnesses do not appear to be
trustworthy. Moreover, the place where they are claiming to be
present at the time of occurrence was not so far away from the
place of occurrence that they could not reach the place of
occurrence at the relevant time. Moreover, their presence at the
place of occurrence is well established by the eye-witnesses
account. Hence, the appellants failed to prove the plea of alibi.
The burden of proof to prove their plea of alibi was on them.
They had not taken such plea even in their statements under
Section 313 Cr.PC.
42. Hence, we clearly find that prosecution has been
able to prove its case against the appellants beyond all
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reasonable doubts and the Trial Court has rightly convicted
them. There is no illegality or infirmity in the impugned
judgment of conviction of the appellants. The impugned order
of sentence against the appellants have been also appropriately
passed by Ld Trial Court.
43. The Appeals are accordingly, dismissed.
44. The appellants are already in custody.
45. The records of the case be returned to the Trial
Court forthwith.
46. Interlocutory Application/s, if any, also stand
disposed of accordingly.
( Jitendra Kumar, J.)
I agree.
(Ashutosh Kumar, J.)
S.Ali/Ravishankar
/Shoaib/Chandan
AFR/NAFR NAFR
CAV DATE 29.08.2024
Uploading Date 11.09.2024
Transmission Date 11.09.2024